PROSECUTION v. KARAMBIZI

# PROSECUTION v. KARAMBIZI

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2015-01-16 - Case/document no.: RP 0205/14/TGI/GIC - Collection: Intermediate Court

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PROSECUTION v. KARAMBIZI [Rwanda INTERMEDIATE OF COURT OF GICUMBI – RP 0205/14/TGI/GIC (Mbarushimana, P.J.) January 16, 2015] Criminal law – Excessive speed for a vehicle – The driver was on the high speed as evidenced by the force which overthrown the victim over the road on the extent of breaking the bone of his leg Law nº15/2004 of 12/06/2004 relating to evidence and its production, article 104, 108, 119 and 120 Criminal law – The accused lacked precaution and foresight because the accident was neither caused by the person or hit thing nor the cause which may be separated from the vehicle through the conduct of the driver Evidence law – Erroneous report of the Judicial Police – Though it is erroneous with regard to the directions of the road, the statements of o those who were involved in accident and who are the true holder of the truth indicate that they were moving to different directions – Law nº15/2004 of 12/06/2004 relating to evidence and its production, article 104 and 108 Criminal law – Determination of the penalty – Mitigating and aggravating circumstances –Upon the request or upon its own motion, based on the law, the Court assesses whether or any other fact that would be taken into consideration – Organic Law N° 01/2012/OL of 02/05/2012 instituting the penal code, article 82. Criminal law – Aggravating circumstance – Concurrence of offences is an aggravating factor since only most punishment is applied taking in to account the committed offences considering them separately and in addition to the fact that and the fact the accused is first offender, is a mitigating circumstance the which gives him the chance to benefit the reduction of the penalty – Organic Law N° 01/2012/OL of 02/05/2012 instituting the penal code, article 82. Criminal Procedure law – Court fees – All the services provided by the court must be paid through the deduction from the court fees deposited by the one who exercised a criminal action or the accused in case he/she lose the case. This is should be the same procedure for the convict who is released. Facts: Karambizi Deny was indicted by the Prosecution in Intermidiate Court of Gicumbi accused of knocking down Felicien and cause him wound him. The prosecution based on the fact that Kabrebe was knocked down while he was in his right side, the medical report of the medical doctor which prove that Kabarebe Felicien broke the bone of his leg, the testimonies given attesting that Karambizi was negligent and which was approved by the Judicial Police. In his statement Karambizi admitted that he knocked down the cyclist then he nuances this statement that it was the cyclist who fell against the vehicle and then fell over the road. He states that there is contradiction in the report of the Judicial Police and the statement of the victim The accused pleads that the penalty to be imposed on him should be in compliance with the provisions of article 592 of penal code.

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Held: 1. The fact that the knocked was overthrown over the road, justifies that the driver was on a high speed, since, if it was not the case, there would not be enough force able of overthrow a person over the road which resulted into fracture of the bone of his leg. 2. The accused lacked precaution and foreseeability, it is not negligence since the accident was neither caused by the knocked or hit object and was not caused by the behaviour the driver of the vehicle. 3. The report of the Judicial Police Officer contain an error with regard to the driver and the knocked since their statements confirm that they were heading to different directions and both of them had good knowledge of their journey more than the Judicial Police Officer who came at the scene for the purpose without any knowledge of journey of people who were involved in accident. Therefore, he is guilty of excessive speed and causing involuntary body injury and it constitute concurrence of the crimes. 4. Upon its motion or on the request, the court examines whether there is not whether in the case there is not mitigating or aggravating circumstances based on the law or other facts it considers important. 5. The fact that the committed by the accused crimes constitute ideal concurrence; it is an aggravating circumstance because the imposed penalty is the heaviest taking into account the committed crimes being considered separately. 6. The fact that the accused is a first offender; it is a mitigating circumstance giving him the chance to benefit the penalty reduction so as to think about the badness for him not to do the same again. 7. Article 592 of Organic Law nº01/2012 of 02/05/2012 instituting the penal code cannot be applied in this case because the facts of the case fall within application of article 156 and 158. It is therefore applicable when those facts to which it applies are not available or incomplete. In case there is wounded, articles from 156-158 apply. 8.The service of the court is paid from the court fees deposited by the one who exercised an action in case he/ she loses the case or the accused if he/ she loses the case as well. The court fees to be deposited in Intermediate Court is 50, 000 Frw which is not refundable except if the claimant is refunded by the loser. This is the same amount that the loser of the case who is released should pay. Criminal action has merit Karambizi is guilty of the alleged crimes Mitigating and aggravating circumstances should be considered in imposing the penalty He is sentenced to a fine of 500, 000Frw He should pay the court fees amounting 50, 000Frw. Statutes and statutory instruments referred to: Organic Law nº01/2012 of 02/05/2012 instituting the penal code, article 71, 76, 82, 83, 84, 156, 158 and 592. Law nº30/2013 of 24/05/2013 relating to the code of criminal procedure, article 268

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Law nº15/2004 of 12/06/2004 relating to evidence and its production, article 104, 108,119 and 120. Presidential decree n° 85/01 of 02 september 2002 regulating general traffic police and road traffic, article 26 Ministerial Order nº001/08.11 of 11/02/2014, article 2 and 4 Cases referred to: Prosecution v Musengimana, RPA 0171/14/TGI/GIC, rendered by Intermediate Court of Gicumbi on December 12, 2014. Prosecution v Ngiruwonsanga, RP 0177/14/TGI/GIC, Rendered by Intermediate Court of Gicumbi on December 15, 2014. Prosecution v Uwizeyimana, RP 0115/14/TGI/GIC, Rendered by Intermediate Court of Gicumbi on November 26, 2014. Prosecution v Ndereyimana, RP 0180/14/TGI/GIC, Rendered by Intermediate Court of on December 19, 2014. Judgment [1] In this case, what is at stake is first comes its brief background the requests of parties( I) then based on the vailable objections in the case, requests of parties will be assessed as well; thgis would constitute the basis for analysis of legal issue so as thye case to be adjudicated in a appropriate manner as expected by the court(II) fanilly, the court will issue its verdict (III). I. BRIEF BACKGROUND OF THE CASE. [2] The Prosecution contends that it prosecutes Karambizi for the said offences. It submits that on January 27, 2014 about 10 a.m when he was driving the vehicle DAIHATSU RAB 719 S from Rubaya to Gatuna he knocked down and wound Kabarebe Felicien when he arrived at Nyankesha/ Gishari/ Rubaya in Gicumbi District. [3] The Prosecution in supporting its action with eveidence, submits that the sketch of accident reveals that Kabarebe was knocked down while he was in his right side,the the testimony which attests that Karambizi had negligence though the road was narrow as well and caused accident. As to the Judicial Police Officer, the accident was caused by negligence of the driver, the admission of the the accused that he knocked down even though he adds that it was the cyclist who promptly fell against the vehicle and the then fell over the road,the medical report which indicates that Kabarebe broke the bone of his leg. The Prosecution requeto two requested for him to be sentenced two months in jail. [4] The accused assisted by Me Rutaganira Alexandre, the counsel, admitted that the accident really occured. However, he added that it was it was caused but the cyclist who had promptly fell against the the veicle and then fell over the road. Again, he insisted, the medical report does not match the statement made by the victim because one states that he was coming

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from Gatuna to to Rubaya while another states that he was coming from Gatuna to Rubaya which reveals a manifest contradiction that the court would also take into consideration to confirm that the allegations are not corresponding to the truth. The last point was that the accused would be punishable based on article 592 of the Penal Code. [5] It is therefore deemed necessary to analyse legal issues of the case either whether raised by parties or those which are left by the law to be examined bt the Court at its own initiative. These issues should be nalysed taking into account the requests of both parties. II. ANALYSIS OF LEGAL ISSUES [6] The legal issues of the case are down set forth:1) to know the cause of accident and whether it was caused by the fault of the accused in such a way that it is enough for his conviction 2) whether the two contradicting statements can constitute a cause of not holding the accused criminally liable 3) regarding the concurrence of the crimes 4) regarding the determination of the penalty5) regarding aggravating circumstances6) regarding amitigating circumstances, whether the accused must be punished based on article 529 of Organic Law nº01/2012of 02/05/2012 instituting the penal code 8) determination of court fees for convicted who is not jailed. 1) To know the cause of accident and whether it is the fault of the accused in such a way that it is sufficient to convict him. [7] In his interrogation in the Judicial Police, he testified that the road was too narrow in such a way that when the vehicle came, him and his companion while pushing bicycles which were carrying coals stopped for the vehicle driven by the accused to pass. During the hearing, the accused admitted that he knocked down the cyclist, Kabarebe. He added he knocked him after he had bypassed him, to mean that Kabarebe was knocked by a cargo space. He insisted that the cyclist tended to force pushing his bicycle which caused and resulted into being knocked by the cargo space then he fell over the road. [8] Based on articles 104 and 108 of nº15/2004 of 12/06/2004 relating to evidence and its production allow the court to examin deductively the pleadings of the parties. This implies that Kabarebe was actually knocked by cargo space. It is not him who fell against the vehicle. This should not be considered true. [9] Again, the statements of the accused himself when considered together with those of Kabarebe who was knocked, imply that the accused lacked foreseeability and precaution since he could have taken into account the size of the vehicle he drove and the width of the road in which pedestrians walk. Therefore, he did not pay attention to this and let them pass or ask them stop coming for him to pass. It implies therefore that the accused knocked the cyclist down due to lack of precaution and foreseeability. [10] The accused admits that the knocked was overthrown down the road. Based again on articles 104 and 108 of the Law nº15/2004 of 12/06/2004 relating to evidence and its production which allow the court to analyse deductevely the case, it implies that the accused was on a high speed. If it was not the case, there should not have been the force to throw the victime down the

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road. This knock caused Kabarebe to break the bone of his leg as evidenced by the medaical report. It is therefore understandable that if the accused was on excessive speed the victim could not have injured on the extent of breaking the bone of his leg the case is. Therefore, the accused is guilty of excessive speed. [11] This is further so decided based on article 119 analysed together with article 120 of the Law nº15/2004 of 12/06/2004 relating to evidence and its production which allow the court which authorize the criminal court to exercize its discretion in considering or not considering submitted evidence or it subjects to human presumption. [12] The accused lacked precaution and foreseeability since there is no evidence to prove the cause of accident. This is further explained by minute of accident as alaborated by the Judicial Police who, in his analysis, found that the accident was caused by negligence of the driver of DAIHATSU, Karambizi Denis who is accused as highlighted on identification code 4. [13] The fact that the Judicial Police Officer qualified it as negligence, the Court rather qualifies it as lack of foreseeability and precaution. The Court notes that negligence should be referred to when the driver should have done something but had not done it and hence the accident occurs. It is very obvious that the accident did not come from the victim or the hit thing. It did not further arise from any other cause other than the behaviour of the driver of the vehicle.It is in these circumstances that one talks of negligence of the driver of the vehicle. [14] Thus due to lack of foreseeability and precaution, Krambizi did not moderate the speed of the vehicle and he hit a person which caused the victim to break his the bone of his leg. He is guilty of all these offence as held. 2) Whether contradicting statements may be the cause of not holding the accused guilty. [15] Rutaganira, the counsel adduced that with regard to the statements of interrogated persons. According to him, this controversy would lead the court to exercise its discretion to check whether all that are alleged are true to avoid injustice against the accused as it is very clear that they were heading to the same direction in such a way that Karambizi could not hit Kabarebe. [16] The Prosecution admitted that there is contradiction between the direction the victim and the accused were heading to when you consider the interrogated people and the minute of accident. THE VIEW OF THE COURT [17] The court finds that the interrogated peoplw do not have the same language with regard to the directions. On the identification code 9, Karambizi states that he was coming from Gatuna to Rubaya to tea transportion. On identification code 7 Kabarebe Kabarebe stated that he was coming from stated that he was coming from Rubaya to Gatuna. The Judicial Police Officer who drew the minute of the accident stated that the accused was coming from Rubaya to Gatuna and the sketch for the accident scene as presented on identification code drawn as such.

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[18] Based also on articles the 104 and 108 of the Law nº15/2004 of 12/06/2004 relating to evidence and its production as allowing the court to make an inference from known facts to discern the known fact, what should be considered as a truth is the statments of the interrogated, Karambizi and Kabrebe. Karambizi was coming from Gatuna to Rubaya as he himself admits while Kabarebe as to him he was coming from Rubaya heading to Gatuna. They were going to different directions therefore. The minute of accident scene was erroneous with regard to the the knock and who who knocked him down. [19] The reason why the court views things in this way, it is because it is the victim and the driver of the vehicle who know better about their journey of that day, its preparation and its purpose. They are therefore the ones who know the truth than the Judicial Police Officer who merely came there for the purpose of his work without any knowledge about the journey of those people involved in the accident, he had no much knowledge about the journey. Hence , even erring is easier for him than those people involved in the accident. In addition, they could not tell lies as the court does not identify the reason as to why. [20] The court therefore finds that the motivating factors to be taken into consideration than others to take one of the contradictory statements as truth telling and hence inculpate the accused, include among others the fact that one of the authors of the statements had always full knoledge of his statements because he has normally planned that or that he normally had knoledge if it than any other statements that it is clear that there are grounds to presume that he had not normally knoledge of it or that who is promptly involved in the situation and hence he is not much more informed than the first oone. Therefore, it is also understandable that having diverse statements because of error committed by the one who does not normally has the knowledge of the situation that the one who has it would be the one to err and produce false statements. [21] At any cost, all offences, either excessive speed or assaul and battery due to lack of precaution and foreseeabilty are factual and he is guilty of them as above held. Furthermore, these offences constitute concurrence of offences. 3) Regarding the concurrence of the committed crimes [22] More than one crime had been committed and one aggravated another. The crime of not regulating the speed of the vehicle and the one of injuring the cyclist on the extent of breaking his leg. Based on articles 83 1º and 2º b of Organic Law nº01/2012 of 02/05/2012instituting the penal code Article 83 1º pprovides that concurrence of offences occurs where a situation where the same person commits several offences before being finally convicted for one of them; 2º ° ideal concurrence: ideal concurrence of offences occurs when: a. (…) b. an act comprises acts which, by comprising separate offences, are related among themselves as they arise from a single criminal intent or some of them constitute aggravating circumstances of others. It had been demonstrated that he is guilty of these crimes and he should pay consequence.

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4. Regarding the determination of the penalty [23] The Prosecution requested for the accused to be sentenced to two years in prison. [24] The accused pleaded that the court would be wise and consider the all traffic difficulties they face since he had never had intention of hitting him. [25] The holding of the court to the at stake is that the court at any request or at its own initiative examins whether there are no mitigaiting as well as aggravating circumstances in the case based on the pursuant to the provisions of the law or ather fact that the courts considers important. [26] In that case, it is a must to consider the provisions of article 82 of Organic Law nº01/2012 of 02/05/2012 instituting the penal code which provides that in the event of combination of aggravating, excusable, recidivism and mitigating circumstances, Courts shall apply the penalty taking into account these factors in the order set out under this Article. 5. Regarding aggravating circumstances [27] It has been found that alleged crimes are provided for and punished by articles 26 of Presidential order nº85/01 of 02/09/2002 and article 592, 156 as well as 158 paragraph 1 of Organic Law nº01/2012 of 02/05/2012 instituting the penal code. In addition, these offences constitute ideal concurrence as embodied in article 83 of this Organic Law as it has been highlighted. Article 26, paragraph 1 of presidential decree no 85/01 of 02/09/2002 provides that every driver must adjust speed. Subject to severe penalties under other Articles of this Organic Law, any person who violates road traffic regulations while driving shall be liable to a fine of ten thousand (10,000) to one hundred and fifty thousand (150, 000) Rwandan francs. If failure to respect road traffic regulations causes damage to infrastructures or any other property, the offender shall also be liable to compensation of the damaged property Article 156 states that any person who, through clumsiness, carelessness, inattention, negligence, failure to observe the rules or any other lack of precaution and foresight, causes harm but with no intent to endanger the life of another person shall be guilty of homicide or unintentional bodily injuries. Article 158 paragraph 1 states that if assault and battery result from lack of foresight and precaution, the offender shall be liable to a term of imprisonment of eight (8) days to two (2) months and a fine of one hundred thousand (100, 000) to five hundred thousand (500,000). [28] Article 84 of this Organic Law provides that the concurrence of crimes constitutes aggravating circumstance since it provides for the the most severe penalty taking into account applicable penalties for the committed sentences It provides : Penalties in case of concurrence of offences If an offender would receive several penalties of imprisonment or fine as a result of one or several acts, the judge shall

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apply the most severe penalty and increase its duration or the amount depending on the circumstances of the offences, but not exceeding half (1/2) in addition to the maximum of the most severe penalty Any additional penalty shall be applied even if it is only provided for one of the concurrent offences The most severe penalty shall be the one whose maximum range is the highest When two (2) penalties have the same maximum range, the most severe penalty shall be the one with the higher minimum range. When two penalties have the same maximum and minimum range, the most severe penalty is that one accompanied by a fine. A fine shall always be less severe than an imprisonment penalty. [29] This means that the applicable sentence would be the one provided for involuntary bodily injury rather due to lack of precaution an foreseeability as provided for by article 158 paragraph 1 which is a imprisonment ranging from 8 days to 2 months and/ or a fine ranging from 100, 000, 00 Frw to 500, 000, 00 Frw.The Prosecution had requested the imprisonment of two months without a fine. It is to be assessed whether the reduction of the penalty would be applicable. 6. Regarding grounds for the reduction of the penalty [30] Article 71 of the Organic Law nº01/2012 of 02/05/2012 instituting the penal code states : The judge shall determine a penalty according to the gravity of the offence taking into account offender s motives, history and background, circumstances surrounding the ‟ commission of the offence and individual circumstances. While article 76 of the same Law states that : The judge may consider the appropriateness of mitigating circumstances which preceded, accompanied or followed an offence. The decision to accept mitigating circumstances must be justified. [31] Basing on this articles therefore, the Court found that the accused had never had bad anti sociel behavious pror to the commission of the said crime. He is the first offender. The court fi nds that it is the factor which preceeded the commission of the crime which can be the motivation for him to benefit the reduction of the penalty since he is the first offender. The Court notes that the fact that the accused had never committed the crime before but now happens to him, it is the time for him to thing of the badness of the crime he committed so as hi to take appropriate measure to prevent it to happen again. This is the reason why the Court views that he should benefit the reductiuon of the penalty escpecially that the the first offender statu sis in most case considerec as mitigating circumstances. This is a judicial opinion in othe cases the court had adjudicated1. 1 Example, Prosecution v Musengimana, RPA 0171/14/TGI/GIC , rendered by Intermediate Court of Gicumbi on November27, 2014 , Prosecution vNgiruwonsanga, RP 0177/14/TGI/GIC, rendered by Intermediate Court of Gicumbi on December 15, 2014, para 23 & 24 and many other cases.

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[32] The Law provides for the penalty of imprisonment and a fine considered together or one of the two penalties. Based on the principle that rules of criminal law areof public order which leads the court to exercize its discretion in the determination of the penalty and motrivate the decision without being bound by the request of the Prosecution. Therefore, the Court notes that there is no cause as to why such a penalty cannot replaced by a fine since, according to the Court, the committed crime is not among those crime which are committed with cruelty or with intent to cause harm. There is no reason to choose imprisonment as the most severe penalty than a fine while the fine itself is also penalty that the court does not consider lenient. [33] In the judgment that had been decided by this Court, the Prosecution v Uwizigiyimana, RP 0115/14/TGI/GIC, rendered on November 26,2014 and Prosecuttor v Ndereyimana, RP 0180/14/TGI/GIC, rendered by Intermediate Court of Gicumbi on December 19, 2014. The sentence of fine of 300, 000, 00Frw had been imposed since there is no crime of non adjustment of the speed. Rather, there is a inoluntary bodily injury. It is clear that there is no concurrence of the crime. The court imposed d only the sentence of fine of 300, 000,, 00Frw while in this case case there is concurrence of crimes among others non adjustment of the speed and involuntary bodily injury; they constitute concurrence of the crimes and it is the aggravating circumstances as it has been discussed. This is shaving impact on the the determination of the penalty. 7. Whether the accused can be punished pursuant to article 592 of Organic Law nº01/2012 of 02/05/2012 instituting the penal code. [34] Rutaganira, the counsel, requested that the accused would be punished based on article 592 as stated since, according to him, the Prosecution filed its action based on the same article. [35] The Prosecutor responded that the court would examin thye issue and apply the law. THE VIEW OF THE COURT [36] Article 592 of the Organicl Law states : Subject to severe penalties under other Articles of this Organic Law, any person who violates road traffic regulations while driving shall be liable to a fine of ten thousand (10,000) to one hundred and fifty thousand (150, 000) Rwandan francs. If failure to respect road traffic regulations causes damage to infrastructures or any other property, the offender shall also be liable to compensation of the damaged property. [37] The court views that therefore article is applied when the provisions of article 156-158 of this Organic Law are not reflecting the facts, those facts are not available at all or are incomplete. Mostly, it is in the case none got killed oe wounded. Therefore, in case there is a killed or wounded person, those articles from 156 to 158 are applied. This article therefore, according to the court, is not applicable. [38] After the court has determined the appropriate punishments, the court deems it necessary to take a decision on the issue of expenses of the court with regard to the case. 8. Regarding the court fees spent on a criminal case in case the offender is not in prison.

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[39] Article 268 of Law nº30/2013 of 24/05/2013 relating to the code of criminal procedure provides that pesons in prison are exempted paying court fees either depositing court fees or expenses of the the services of the court. This brings an issue of thosein litigation while not in prison as well as the amount of money to be paid. [40] Normally the service of the ocurt should be paid. There is no any other ground for the court to waive this principle. It is usaually paid based on the court fees deposited by the plaintiff since the service of thye court should be paid and it is dwawn from that deposited court fees in case he loses the case or else be paid by the defendant if he loses the case as well. Presidential order nº001/08.11 of 11/02/2014 provides that court fees to be deposited in the Intermediate Court is 50, 000, 00Frw non refundable unless the plaintif fis refunded by the defendant( articles 2 and 4). This implies that 50, 000, 00Frw is ‘’forfait’’ for the service of the court regardless of its nature. This is the same amount that the loser of criminal case should pay in case he was free. III. THE DECISION OF THE COURT [41] The action of the Prosecution is received and it has merit after its examination. [42] Decides that Karambizi is guilty of the alleged crimes and should be punished accordingly. [43] Decides that he should be punished taking into account aggravating and mitigating circumstances as listed above. [44] Sentences him to the fine of 500,000, 00Frw [45] Orders him to pay the court fees amounting 50, 000, 00 Frw